HKSAR v. KO WAI KIT AND ANOTHER

HCCC 252/2019

[2020] HKCFI 3001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 252 OF 2019

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BETWEEN

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RULINGS

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REASONS FOR RULINGS:

(1) admissibility of statement attributed to 2nd accused

(2) objection by 2nd accused to the admissibility of WhatsApp messages

(3) application for severance of Count 1 and Count 2 of the Indictment

Introduction

1.  Objection is taken on behalf of 2nd accused to the admissibility of

(1) the admissibility of a statement attributed to him which the prosecution seeks to produce in support of their case;

(2) certain WhatsApp messages said to be an exchange in that medium of messages between the 1st accused and 2nd accused; and

In addition, 2nd accused applied for severance of Count 1 and Count 2 on the indictment.  There was another application in relation to the admissibility of the CCTV material. This was not pursued.

2.  Each of these issues was raised and considered as preliminary matters prior to the trial of the accused.  At the end of submissions by counsel for the parties, I gave rulings on each of the issues raised as follows:

(1) verbal statement of 2nd accused given to CO 1408 inside Room 1114 is admissible;

(2) post-record of the verbal statement in (1) is inadmissible;

(3) investigations and related matters following the post-record are admissible;

(4) the WhatsApp messages depicted in the hearing bundle presented for the admissibility hearing on that topic are admissible; and

(5) I declined to sever Count 2 from the indictment.

At the time I gave these rulings, I indicated that I would supply my reasons for those rulings in due course.  These are those reasons.

The Indictment

3.  The indictment dated 29 July 2019 as presently drafted contains 2 counts.  The Count 1 which is against both accused alleges that at premises at Cheung Wang Estate in Tsing Yi, New Territories, they trafficked in a dangerous drug namely 796.2 g of a crystalline solid containing 776.3 g of methamphetamine hydrochloride.  The Count 2 on the indictment is a charge against 2nd accused only.  It alleges possession of a dangerous drug at the Customs Office, Hong Kong International Airport.  The quantity of drug is very small.  The drug in question is also methamphetamine hydrochloride.

4.  Both accused were arraigned on this indictment and the both accused pleaded not guilty to Count 1.  2nd accused pleaded not guilty to Count 2.

Admissibility of statement attributed to 2nd accused

Factual background

5.  2nd accused objected to the reception into evidence of a verbal statement by him on 7 August 2018 to CO 1408, Mr Tang Sze Hon in Room 1114, Wang Sin House, Cheung Wang Estate, Tsing Yi in the New Territories.  He also objected to the reception into evidence of the post-record of that statement and to evidence of the investigations into him later on 8 August 2018 at Customs & Excise Service premises at the Hong Kong Airport.

6.  On examination of the parcel found to contain concealed methamphetamine hydrochloride in substantial quantities.  The parcel arrived via DHL and Customs & Excise Service decided to undertake a controlled delivery package to the addressee.  There were a number of unsuccessful attempts at this and persons unknown contacted DHL change the addressee.  By the time of the 5^th controlled delivery, the addressee had been changed to the name and address of 1st accused.  There was evidence, which I held to be admissible of substantial WhatsApp communication between mobile phones in the possession of 1st and 2nd accused respectively and the inference which is available from that communication and the circumstances surrounding it is that is that 1st accused was to receive the parcel and 2nd accused was to collect it.  In any event, on 7 August 2018, a customs officer disguised as a staff member of DHL attended at the address of 1st accused and delivered the parcel.  Shortly after this, 1st accused was intercepted and arrested by Customs & Excise Service officers.  She indicated to them that another person having the same name as that of 2nd accused would collect the parcel from her.  The question of 1st accused was asked by inspector Chow who was the officer in charge of the case.

7.  In the event, 2nd accused did attend at the premises of 1st accused shortly after her interception and arrest.  He arrived at 8:15 PM.  1st accused was asked when 2nd accused entered the premises whether he was the person that she was referring to as the person who was to collect the parcel.  She indicated that he was. 2nd accused was himself intercepted and arrested.  He testified that his question of 1st accused and the answer were capable of being heard by 2nd accused.

8.  When CO1408 arrested 2nd accused, he told him that he was suspected of contravening the Dangerous Drugs Ordinance.  2nd accused was then told he was arrested and he was caution.  He was asked whether he understood and his answer was “Understood”.  The officer testified that he then asked 2nd accused “What is your name?”  2nd accused answered him “Hui Wai Kit”.  The officer then asked 2nd accused what he was doing at the premises and the answer was “[To] find (my) elder sister to chat.”  2nd accused was asked for the name of his sister and he answered “Ko Wai Kit” which is, of course, the name of 1st accused.

9.  Further questions were asked about the finding of a bottle in the backpack of 2nd accused which are not presently relevant.

10.  At 9:05 PM, CO1408 took a post-record of the answers to questions related above.  It was common ground that the post-record (P 61) was an accurate record of what 2nd accused said to CO1408.  It included a record of not only the interception but also a record of the other topic which 2nd accused was asked about.  In relation to both the matter the subject of objection and the other matter the accused was cautioned in identical terms and the caution was written down in the post-record in those terms.  In other words, at the time that the accused came to sign his name to the post-record he had heard caution twice on a verbal basis and he had read it and had it read to him by CO1408.  The post-record concluded with the accused being asked whether or not he wished to make any alteration, correction or supplement post-record indicated that 2nd accused indicated to the officer that there was no need to do so.  The officer then produced a version of the usual declaration.  He then said 2nd accused (and this is recorded in the document) “If you understand and agree with (it), please write (it) down and sign for confirmation.”  2nd accused signed.

11.  2nd accused was then taken back to the office of the Airport Investigation Group of the Customs & Excise Service.  At this stage, 2nd accused was more thoroughly searched and a small quantity of ice was found on his person.  He was arrested and cautioned in relation to that which was seized and he remained silent.  That was the subject matter of Count 2 on the indictment.

The objections

12.  Counsel for the 2nd accused objected to the reception to evidence of the verbal utterances of the accused because said that oral response of the accused was a breach of the “spirit” of the Judges Rules 1912.  Further, it was contended that the caution which was administered on 2nd accused did not specify which specific offence that 2nd accused was suspected of committing.  It was argued that this was a breach of the Judges Rules of 1912 and the Secretary for Security’s Rules and Directions of 1991.  Allied to this, it was contended it was unfair that the accused was not informed of the basis of the suspicions of the Customs & Excise Service officers as to 2nd accused’s complicity in the delivery of the parcel.  It was also contended that the oral response of 2nd accused did not amount to a confession relevant to the charges that he faces and is therefore inadmissible.  The basis of this is that because it was not an admission, it was not an exception to the hearsay rule.  It was further contended that the prejudicial effect of the oral response of 2nd accused outweighed probative value in that it might suggest to the jury that 2nd accused is accepting all of the allegations made by 1st accused against him.  The basis for this contention is that it was said that in law what 1st accused told the customs officers was inadmissible against 2nd accused.

13.  Finally, there was a further allegation that 2nd accused was actually escorted into the premises by customs officers then stationary outside the premises the purpose of guarding those premises and as a result of that accused was under threat when he responded to the caution of CO1408.

14.  Although not in his written particulars, counsel for 2nd accused also contended that the results of the search at the officers of the Customs & Excise Service at the Airport was inadmissible because that search had been vitiated by the conduct of the officers at Room 1114.

Evaluation

15.  CO1408 testified as did another customs officer and also Inspector Chow, the accused chose not to testify as was his right.  The consequence of his not testifying was that there was no evidence to contradict the officers called by the prosecution.  In my judgement, each of the officers was transparently honest and I had no hesitation accepting all that they said.

16.  I also make the point at this stage that I accept what the Inspector said that when 2nd accused entered Room 1114 they had no idea whether he was the person who 1st accused said would turn up to collect the parcel someone else.  Accordingly, it was an obvious necessity to ascertain his identity.

17.  Before taking the matter any further, I reject has utterly fanciful the notion that the accused was intercepted outside the premises and taken to the premises.  Leaving aside there was not a word of evidence to support this proposition, I accepted the testimony of the prosecution witnesses that there was no guard on the outside.  I also accepted that the officers heard the iron grill to the premises being opened and very shortly after that they saw 2nd accused push open the door to the premises.  The officers testified that the door was slightly ajar at the time of the entrance by 2nd accused.

18.  It is contended on behalf of 2nd accused in relation to the admissibility of as verbal response was the suggestion that the officers did not inform 2nd accused that he was suspected of trafficking in dangerous drugs.  The allegation which accompanied the arrest was the bland assertion that he was suspected of contravening the dangerous drugs.  The argument on behalf of the accused was that he was given insufficient information put him in a position to make an assessment of the nature and scope of his peril so as to allow him to make an informed decision as to whether speak remain silent.  CO1408 testified that the reason that he was not more specific was that the nature of the offence might be levelled against 2nd accused was not something that he was capable deciding.  This was a matter, so he testified, for the Inspector.

19.  Counsel argued, relying on HKSAR v Pang Ho Yin [2010] 3 HKLRD 515, that the accused had insufficient information to make an informed decision. In HKSAR v Pang Ho Yin, the accused was being questioned about an offence and the questioning moved to a more serious and, in a sense, unrelated offence.  The Court of Appeal held, following R v Kirk [2000] 1 WLR 567, that where the police questioned a suspect and that questioning moved from matters concerning the offence for which he was arrested and moved to an offence which was more serious than the one for which he was arrested, they must at least ensure that he was aware of the true nature of the investigation and not under a material misapprehension created by the circumstances of his questioning as to the peril in which he might place himself.[1]  The Court of Appeal in Pang Ho Yin held that the failure in the circumstances of that case was no mere technical omission.  The Court held that where the focus of the investigation changed there was a real issue as to whether the choice of the accused to speak or to remain silent was an informed one.  There is an element of force in the criticism of counsel for 2nd accused in the sense that all the accused new was that he was suspected of an offence under the Dangerous Drugs Ordinance.  It was, arguable that it was not for him to fill in the gaps as to which offence the Customs & Excise officers had in mind.  Nevertheless, the accused did know is that he was under suspicion of a drugs offence which, on any view, would be regarded as a serious matter.

20.  The prosecution relied on the decision of the Court of Appeal in HKSAR v Mistun [2013] 5 HKLRD 256.  In that case, which was, by coincidence, a controlled delivery case, the accused picked up a parcel at the post office which was not addressed to him but which contained a substantial quantity of dangerous drugs.  The criticism in that case was that the complaint about the investigating officer’s conduct was that he had only alleged that the offence for which he was arrested was an offence against Dangerous Drugs Ordinance.  The Court of Appeal held that while it might be preferable to name the drug in respect of which the accused was arrested, but failure to do so should not have led, by itself, or with other points made to the exclusion of the evidence in question.  The Court held that the accused had been told in plain and simple terms of the reason for her arrest.  It is, perhaps, noteworthy that one of the quorum of the Court of Appeal in HKSAR v Pang Ho Yin (above) was the president of the Court giving the decision in HKSAR v Mistun.

21.  For my part, I am sure that 2nd accused knew perfectly well that he was in peril for a drugs offence.  He was cautioned in clear terms.  I think it would have been preferable to inform the accused that he was suspected of trafficking.  The explanation given in the present case that the precise offence was a matter for his superiors is, I must confess, somewhat lame.  Nevertheless, the essential message was that 2nd accused knew he was in peril for an offence against the Dangerous Drugs Ordinance which, of itself is serious enough.  Most importantly he was informed of his right to speak or to remain silent.  That is the object of the caution.  His answer as to his identity followed the caution.  There is no suggestion that the answer he gave was anything other than voluntary.  The underlying rationale of the discretion to exclude an otherwise voluntary statement is a concern which has, at its heart, the notion of fairness.[2] In the circumstances of this case, there was nothing unfair in what happened and is no basis on which the exclusion of an otherwise voluntary statement could be justified.

22.  I reject the proposition that what informed the decision of 2nd accused to give the answer that he did was that it was in response to the assertion by 1st accused that he was Hui Wai Kit and was under moral pressure to agree to this. The basis for this rejection is (1) the accused did not give evidence and, accordingly, there was no evidence of what motivated him to say what he recorded as having said; and (2) the assertion by 1st accused was punctuated by the arrest of 2nd accused and, more importantly, the caution immediately following the arrest. Thus, 2nd accused had been reminded of his right to speak or to remain silent and, even if the assertion of 1st accused formed a motivation him saying what he said, the decision to speak was an informed one.

23.  It is also contended that the answer given by 2nd accused is not relevant.  It certainly is capable of being relevant.  Although I would readily accept that the name of the accused was well capable of being proved by the production of his identity card, the admission by 2nd accused of his name tends to connect him more readily with the premises than if he was another person.  While it is in fact confirmation of what 1st accused said to the officers, in the event that it becomes necessary to direct the jury about the rule that the out-of-court utterances of one accused are not admissible against another accused, that will be done.

Admissibility of WhatsApp messages

The issues

24.  The prosecution seeks to evidence of WhatsApp communications between the 1st and 2nd accused.  A Nokia mobile phone with a sim card having the number 5984 1513 was seized from 1st accused.  Two mobile phones were seized from 2nd accused. The first was a purple LG mobile phone with the sim card having the telephone number 5981 1033. The other mobile phone was also a black LG phone with dual sim cards bearing the telephone numbers 5519 5285 and 6488 2519.  While 2nd accused accepts that the mobile phones were in fact found in his rucksack, there are no admissions that they are his phones.  I proceeded upon the basis that it is a reasonable inference that these were 2nd accused’s phones and, in the event of this matter going to the jury, I think that the evidence is well capable of satisfying the jury that that is the only reasonable inference.  If I was the tribunal of fact on the general issue, I would have no hesitation in drawing that inference.

25.  The means by which the prosecution intend to adduce this evidence is by way of photographs of the screens of the respective mobile phones, which are produced by photographing the mobile phones when they are switched on and the WhatsApp function of each phone is activated.

26.  The case for 2nd accused is that the communications are inadmissible hearsay.  2nd accused takes issue with the reliability of the technology which the prosecution says conveys messages.  (1st accused does not object to the reception into evidence of this material.  This is consistent with her case that the prime mover in this case was 2nd accused and that she was an innocent dupe.)  The case for the prosecution is that the screenshots are not being tendered for the purpose of proving the truth of the contents of those screenshots.  The case for the prosecution in this context is that the WhatsApp messages are part of the evidence from which it can be inferred that 1st accused agreed to receive a parcel at her residence which happened to contain a substantial quantity of methamphetamine hydrochloride and all of this was arranged through 2nd accused.  The WhatsApp messages are not the exclusive mode of proof in this regard but they are an important one.

27.  As to the means by which the photographs of the screens of the mobile phones (hereafter referred to as “screenshots”), case for the prosecution is that 1st accused consented to a customs officer photographing various entries displayed on the screen of 1st accused’s mobile phone.  As will shortly appear, an important component of evaluating what is seen on the mobile phones in 2nd accused’s possession is to examine the screenshots taken from 1st accused’s phone.

28.  In relation to the position of 2nd accused, search warrants were granted to officers from the Customs & Excise Service in respect of the mobile phones seized from the rucksack of 2nd accused.  On 18 June 2019, the Customs & Excise Service obtained a warrant to access and search for and take possession of the article namely all the data in the above-mentioned mobile phones.  These related to the mobile phones seized from 2nd accused. The first warrant was time-limited as to its effectiveness. It was to be executed by 1 July 2019.  The mobile phone of 1st accused was examined on 18 June 2019 which was the date on which the warrant was obtained and, plainly, before that warrant expired.  However, a further warrant was necessary to examine the mobile phones of 2nd accused.  That was applied for and granted on 3 July 2019 and was, for all practical purposes in the same terms as the previous warrant.  The warrant was time-limited but the Customs & Excise Service examined and retrieved the phone data on 2 separate days, both of which preceded the date of expiration.

29.  A further warrant was obtained to take screenshots from the mobile phones of 1st and 2nd accused.  That warrant was obtained on 9 October 2019.  On 16 and 17 October 2019, screenshots were captured from both phones.

30.  It is evident from the depositions in this case and the notifications of additional evidence that the screenshots are very numerous.  I was given a selection of screenshots of the respective mobile phones in order to make the determination required.

Are the mobile phones which produced images on their respective screens computers?

31.  Are the mobile phones which produced the images on their respective screens computers?  The answer is that they are. In Secretary for Justice v Wong Ka Yip Ken [2013] 4 HKLRD 604, Fung J considered the operation of what he characterised as a smart phone in the context of whether certain aspects of its use might form the subject of an offence under section 161 of the Crimes Ordinance, Cap 200.  Fung J considered a range of definitions of computers in the context of different statutes and authorities from many jurisdictions.  The reason for that was that there is no definition of “computer” which relates to section 161 of the Ordinance.  In the result, Fung J particularly relied on the definition in the Online Oxford Dictionary’s meaning of “computer” - namely “an electronic device, which is capable of receiving information (data) in a particular form and of performing a sequence of operations in accordance with a predetermined but variable set of procedural instructions (program) to produce a result in the form of information or signals”.

32.  It seems to me that all 3 mobile phones in the present case behave like computers by reference to the definition approved by Fung J in Secretary for Justice v Wong Ka Yip Ken (above).  It seems to me that it is appropriate for this Court to take judicial notice of the widespread use of such phones in Hong Kong (and throughout the world).

33.  That definition in Secretary for Justice v Wong Ka Yip Ken appears to be entirely apt for the mobile phones in use in this case.

The admissibility of messages via WhatsApp

The operation of WhatsApp

34.  WhatsApp is one of many applications commonly found on mobile phones in Hong Kong and elsewhere used for communication of messages in either written or symbolic form (in the context of symbolic form I have in mind the example of what are known as emojis which are visual or symbolic representations of a variety of emotions and are in common use) and the provision of graphic images in the nature of photographs.  It is also possible to send audio recorded messages and videos over the WhatsApp system.  There are probably many other functions supported by the WhatsApp system but I think it is fair to say that these are the most common.  Messages of the kind that I have just described may be forwarded by the recipient to a further person or persons using the WhatsApp system.

35.  It is also widely known that WhatsApp operates with respect to many different kinds of mobile phones.  The WhatsApp function can be imported onto a mobile phone.  Messages can be sent to from a phone onto which WhatsApp is imported to another phone onto which WhatsApp is imported.  The system directs the message to the number selected by the sender.  That number is usually but not always the number of the sim card. (It can be a another number nominated the recipient.  1st accused actually did this.)[3] 

36.  The WhatsApp function is in the nature of a computer program. It is almost certainly complex.  The nature of the program itself is undoubtedly beyond the knowledge those who use it in Hong Kong.

37.  WhatsApp is by no means the only service of the kind I have just described.  In my view, judicial notice can be taken of those facts. Judicial notice can also be taken of the fact that many, many people in Hong Kong rely on such a form of communication as between persons or groups of persons.  It would be safe to say that on any given day in Hong Kong, millions of such communications proceed using either the WhatsApp system or using one of the other messaging systems.

38.  In the context of the extensive use of these modes of communication (including communication via WhatsApp), a person sending a communication (whether text recording visual image or otherwise) sends that message to another mobile phone number.  A record may be kept of that message on the WhatsApp system on the sender’s mobile phone.  Often, the number of the intended recipient is stored in the contacts function of WhatsApp.  This is a means of keeping a list of persons and their phone numbers and possibly other details and this facilitates sending the messages more easily.  There is a facility for a person who sends a message of whatever form to broadcast their own details including either a photograph of themselves or some other symbol or representation.  That is not compulsory but it is often done.  A person receiving a communication on his or her mobile phone receives a text message, symbols or visual representations.  That message would reveal the phone number of the sender and if the sender has included a visual representation of themselves.  If a reply is sent, then the reply is recorded on the WhatsApp function of the mobile phone of the person sending the reply and, if the reply received that appears on the WhatsApp function of the recipient.

39.  It is perfectly possible for the sender to delete a message that has been sent the record of the message on their own phone.  For at least some time after the message is sent, it can be deleted on the phone of the recipient.  Equally, if the message is received, the recipient of the message can delete the message on their phone but can have no influence on whether there is a record of that message being sent on the sender’s phone.

40.  It is a common experience that the sender of the message who claims to be a particular person may not actually be that person.  Neither WhatsApp nor, as far as I am aware, any of the other messaging services provide any basis for verification of the identity if the caller or message sender.  There is no guarantee that a message sent will, of necessity be received.  However, if a person has access to the WhatsApp function of the sender and the same function on the recipient’s phone, it would be possible to determine whether that message has been received.  It would be open to compare the text of the message recorded on the sender’s mobile phone with the message on the recipient’s mobile phone.  That might provide some information as to whether the message was sent and received accurately.  Plainly, if one has access to both the mobile phones of both the sender and the recipient and there is a series of messages sent between them with the message of the sender having a counterpart on the receiver’s phone and so on, then over time if there is a series of exchanges between the parties that may tell you something about the accuracy and reliability of the system.  This is important from two standpoints.  The first is that it is understood that immediately after the message leaves the mobile phone of the sender the WhatsApp system encrypts the message and, on receipt at the recipient’s phone.  Further, it is difficult to imagine how an application on a mobile phone could be in such widespread use unless the users of the system regarded it as reliable.  It is reasonable to conclude that such a system if it was unreliable would soon be discarded if things were otherwise.

Principles which govern the use of judicial notice

41.  In my opinion, given the widespread use of the WhatsApp system in Hong Kong, it would be appropriate to judicially notice what the WhatsApp system does in its ordinary use in the Hong Kong community.  The principles which govern the reception into evidence of a fact or series of facts of which judicial notice may be taken is that whenever a fact is so generally known that ordinary persons may be presumed to be aware of it, a Court may take judicial notice of the fact either without further inquiry if it is satisfied of the existence of the fact, or after inquiry from sources the Court considers to be reliable: Commonwealth Shipping Representative v P and O Branch Service.[4] There are statutory forms of judicial notice which are not presently relevant.  There are restrictions on the scope of judicial notice and, indeed, this may be seen from the application of the principles in Commonwealth Shipping Representative v P and O Branch Service (above).  In that case, the House of Lords were prepared to judicially notice the existence of hostilities [5](the shipping collision the subject of the proceedings occurred in the middle of World War I) but were not prepared to judicially notice the specific action in that war, which gave rise to one of the ships involved in the collision having military cargo.  That said, Lord Sumner made the point:[6]

“My Lords, to require that a judge should affect a cloistered aloofness from facts that every other man in Court is fully aware of, and should insist on having proof on oath of what, as a man of the world, he knows already better than any witness can tell him, is a rule that may easily become pedantic and futile. Least of all would it be possible to require this detached and blindfold attitude towards events which the course of the late war has burnt into the memories of us all.”

In my opinion, the dividing line which is articulated in the authorities is not always an easy one to draw.  As an example, in relation to the geography of a locality, general knowledge might be susceptible to proof by way of judicial knowledge but specific detailed knowledge might not[7]. In the end, the discrimen appears to be notoriety.

42.  Judicial notice is not a static concept and the facts or series of facts which may be judicially noticed may change over time as the community changes. Attitudes of the community and the judiciary to matters such as computers and the Internet have changed radically in the past 30 years.  In 1993 in R v Shephard [1993] AC 380, the House of Lords was concerned with the production in the shoplifting case by the prosecution of a till roll.[8] The roll had been produced by what appears to have been a fairly basic computer system.  Lord Griffiths, in delivering a speech in which all of the Law Lords present concurred observed:

“Documents produced by computers are an increasingly common feature of all business and more and more people are becoming familiar with their uses and operation. Computers vary immensely in their complexity and in the operations they perform. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case. I suspect that it will very rarely be necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly.”

Shepherd was, at its heart, a reliability case.  However, what it also demonstrates is a recognition that an expert witness is not necessarily required to establish what a particular computer does.  As Lord Griffiths made plain, much depends on the circumstances.  The fact that Lord Griffiths held that proof was required of such facts does not, in my opinion, necessarily describe the mode of proof. In Daly v Sheikh [2004] EWCA Civ 119, §46, it was held by the English Court of Appeal that it is possible in any event to take judicial notice of the widespread knowledge that computer use can be reconstructed from the hard drive, even after files have been wiped off the computer.

43.  It is fair to say that there is a discernible time lag between community acceptance of such matters and those being susceptible of judicial notice.  The scope of judicial notice of the operation of the WhatsApp system must be, of necessity limited.  It is unlikely in the extreme that all but a very small number of community members would have any real appreciation of the internal operation of the extraordinarily sophisticated mobile phones available today, both in terms of the hardware and the software which drives them.  Still less would there be many in the community who would have the relevant knowledge of the technology which provides the wireless link between such phones.  The manner in which the WhatsApp system operates in terms of the means by which it operates on an individual phone and then provides a facility to communicate with another phone is also not susceptible to judicial notice.  That would, of course, include the algorithm or algorithms which operate the encryption system which operates inside the WhatsApp system.  All of that would be necessary to be established by those with specialist knowledge and recognised by the courts as possessing that specialist knowledge.  However, subject to the reservation the parameters of the operation of the WhatsApp system which has been described above are, in my opinion, well capable of being judicially noticed.

44.  One possible objection to the use of judicial notice is that it may be used without a party or the parties being aware that the relevant tribunal of fact was considering the employment of judicial notice as a mode of proof for various facts. In the instant case, I indicated to the parties that I was minded to consider the operation of WhatsApp.

45.  The next issue for consideration is whether, and if so, how such system operated in relation to communications between the 1st and 2nd accused.  However, before getting to that issue, it is necessary to appreciate the purpose for which the prosecution seeks to prove the communications or purported communications between the 1st and 2nd accused.

46.  These concerns are also relevant when considering the admissibility and, if admissible, impact of such communications. In this regard, section 22A of the Evidence Ordinance, Cap. 8 regulates aspects of the product of a computer.  In this regard, section 22A(1) of the Ordinance provides:

“(1) Subject to this section and section 22B, a statement contained in a document produced by a computer shall be admitted in any criminal proceedings as prima facie evidence of any fact stated therein if-

(a) direct oral evidence of that fact would be admissible in those proceedings; and

(b)  it is shown that the conditions in subsection (2) are satisfied in relation to the statement and computer in question.”

47.  The first issue is to determine whether section 22A is engaged. In S-J v Lui Kin Hong (1999) 2 HKCFAR 510 and HKSAR v Lau Shing Chung Simon (2015) 18 HKCFAR 50, the Court of Final Appeal held section 22A is only engaged when the purpose for which the out-of-court assertion on the computer is tendered is to prove the truth of that assertion.  Stock NPJ observed in HKSAR v Lau Shing Chung,[9]

“[there is a] misapprehension as to the ambit of the rule against hearsay testimony. The misapprehension is that the rule always forbids evidence of what somebody has declared, orally or in writing, out of court. That is not the rule. The rule is that, subject to certain common law and statutory exceptions:

… an oral or written assertion, express or implied, other than one made by a person in giving evidence in court proceedings is inadmissible as evidence of any fact or opinion so asserted.”

48.  Section 22A(11) explicitly limits the application of the section in any event by providing:

“(11) Nothing in this section affects the admissibility of a document produced by a computer where the document is tendered otherwise than for the purpose of proving a fact stated in it.”

49.  Even though the position of the prosecution is that section 22A is not engaged case because the documents (that is, the screenshots) are tendered otherwise than for the purpose of proving a fact stated in those screenshots, it is necessary to establish the reliability of the system which produced the screenshots.  On no account is suggested that the screenshots themselves are an inaccurate depiction of what appeared on the screen of the respective mobile phones.  It is necessary to establish that the messages passing between the 3 mobile phones in question past accurately.  If that is established it would be necessary in due course to establish that 1st and 2nd accused were the authors of that message.  That is not issue in the present application.  It is at least implicit in the observations of Lord Hoffman in S-J v Lui Kin Hong (above) that the reliability of the system is a matter which has to be proved Section 22A(2) of the Evidence Ordinance provides standards for computers which produce material which falls for consideration under section 22A. Section 22A(2) requires:

(a) that the computer was used to store, process or retrieve information for the purposes of any activities carried on by any body or individual;

(b) that the information contained in the statement reproduces or is derived from information supplied to the computer in the course of those activities; and

(c) that while the computer was so used in the course of those activities-

(i) appropriate measures were in force for preventing unauthorized interference with the computer; and

(ii) the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents.

50.  Of course, section 22A(2) does not directly apply to the computers which underlie the operation of the WhatsApp system.  Indeed had 22A(2) applied, there is a means of proof by certificate in that section which might have established that the system was operating reliably. Nevertheless, section 22A(2) provides meaningful guidance as to what should be considered in determining whether that system was reliably sending and receiving communications between the mobile phones in question.  The question then arises as to what evidence might provide a basis for saying that the system was operating to achieve this purpose.  In answering that question, one must first recognise as has been recognised since R v Shepherd [1993] 2 WLR 102 where the House of Lords made plain that the nature of proof of this issue rather depends on the nature of the computer.  In that case, computer in question was nothing more than a glorified calculator and it was open to the prosecution to call a store detective to say that the “computer” was operating properly.  A similar view might be seen in East West Transport Ltd v DPP [1995] Crim LR 642.  It would be open to the prosecution, conceivably, to call expert evidence to prove that the system was producing reliable communications between the relevant mobile phones in the present case.  However, it seems to me that if, as it is accepted by the parties, judicial notice may be taken of the operation of the WhatsApp system.

51.  It may be objected that it would be too difficult to explain the fine detail of the law against hearsay, the true scope of that law and the permitted use that the jury would be allowed to make of that evidence in this case.  It may also be objected that against that background, it would be too difficult to explain to a jury any impermissible use that the evidence may be put to.  While it is conceivable that there might be cases where this is true, I am firmly of the view that this is not one of them.

Reliability

52.  The fact that the WhatsApp messages are capable of being admitted on the basis that although they are hearsay, they do not violate the hearsay rule does not mean that the issues about reliability which are part of the concerns underlying section 22A when it is necessary to engage that provision simply go away.  However, there is an intensely practical content to that concern in cases where one party or the other seeks to reduce WhatsApp messages in criminal proceedings for a purpose where the section is not engaged. In this regard, given the wide range of computers which might arise for consideration and the purpose for which they are used, the nature of that evidence must, of necessity vary. In S-J v Lui Kin Hong (above), Litton PJ emphasised the essentially practical and common-sense approach that the courts must take to this issue.  There will be times when it will be necessary to call independent evidence of the operation of the computer where something is being measured.  An example of this may be seen in East West Transport Ltd v DPP (above).

53.  It was submitted by counsel for 2nd accused that reliability must be proved beyond reasonable doubt.  He used the analogy of the requirements for the reception in evidence of admissions and confessions.  The standard of proof in relation to admissions and confessions may be explained in historical terms.[10]  For my part, I think the standard of proof for the facts which underly the determination of the admissibility of evidence in criminal proceedings should be on a prima facie case basis and only circumstance in which the facts which must be proved beyond reasonable doubt is in relation to the admissibility of admissions and confessions.  There is powerful support for the lesser standard being required in matters such as the admissibility of evidence of the acts and declarations of a co-adventurer;[11] proof of the underlying facts (such as expertise) in the determination of the admissibility of an expert’s evidence.[12]  There are, doubtless other examples.  However, the issue is academic in the present case.

54.  However, in the instant case the use of WhatsApp for communicating is so well-known that, at least so far as admissibility is concerned it is difficult to see how expert evidence is necessary. In my opinion, so far as reliability is concerned all that is necessary in the present case is a visual comparison.  This is because in the instant case, many on the entries appearing on 1st accused’s phone also appear on one or more of the phones found in the possession of 2nd accused and vice versa.  Pertinently, we see a number which happens to be the same as the relevant airway bill being sent from one of the phones on 2nd accused’s possession to 1st accused.  We see the same number appearing on 1st accused’s phone. 1st accused sends a visual image of her ID card and her address as depicted on her phone and is seen on one of the phones on 2nd accused’s possession.  The image of the ID card is a complex one and it is replicated on one of the phones on 2nd accused’s possession.  The apparently identical images could not be explained as random.  There are other examples.  Generally speaking, where the message in question is seen on both the sending smart phone and the receiving one and any reply is also seen on both phones then it is a fair inference that what was sent was received and at least in this regard the fact that a message appears in the same terms on the sender’s smart phone and the receiver’s smart phone is clearly at the very least prima facie evidence that the smart phones in question are working appropriately for at least the purpose of communicating by WhatsApp.  In the present case I am sure that the coincidence of messages is such as to admit of no other conclusion than the message sent was received in the same terms and in the circumstances the only reasonable inference is that two phones, so far as WhatsApp is concerned that the phones were accurately sending and receiving messages.

55.  For these reasons I am satisfied that it is appropriate to admit the WhatsApp evidence.

Severance of the 2 counts on the indictment

The issues in the trial

56.  The prosecution case against 2nd accused is that 1st accused took delivery of a parcel containing the drugs, the subject of Count 1, at the premises averred in that Count.  She was not the addressee of the parcel but the carrier, DHL, received instructions to send the parcel to the address on the Count 1 of indictment and the parcel was duly delivered.  The delivery was not an ordinary delivery but a controlled delivery using customs officers posing as employees of DHL.

57.  As I have briefly outlined earlier in a difference context, it is pertinent to note that the controlled delivery was by no means the 1^st attempt at that process.  There have been 4 previous attempts.  The first had been to the addressee on the parcel at an address in Kam Tin.  A further unsuccessful delivery to the same address was also unsuccessful.  A 3^rd delivery attempt occurred after DHL received instructions from a person purporting to be the consignor that the parcel be delivered to premises in Yuen Long.  DHL then received instructions to deliver the parcel to a person having the same name as 1st accused and that the parcel should be delivered to the address in Count 1 of the indictment.  The 4^th delivery attempt was attempted at the address and was unsuccessful.

58.  The 5^th attempt to deliver the parcel occurred when a customs officer disguised as an employee of DHL went to the address in Count 1 of the indictment where 1st accused answered the door.  She confirmed that her name was Ko Wai Kit and that she was expecting a DHL parcel.  Indeed, she produced the airway bill number which was the same as that on the parcel.  She confirmed that she wanted to receive the parcel even though her name and address was not on the parcel.  Her identity card was produced and in due course she took the parcel from the officer posing as the DHL employee.

59.  On receipt of the parcel, 1st accused was arrested and said that the parcel was not her parcel, but she was receiving it for a person whose name was the same as 2nd accused.

60.  2nd accused turned up at the premises and was identified by 1st accused as being Hui Wai Kit.  Following that 2nd accused was also arrested and cautioned.

61.  Both accused was taken to Customs & Excise premises at the Airport. At these premises, 2nd accused was searched and the drugs, the subject of Count 2 on the indictment, were found in his underpants.

62.  The prosecution in order to succeed in its case against 1st accused would have to prove that at the time she received the parcel knew that it contained dangerous drugs and that the drugs were for the purpose of unlawful trafficking. In order for the prosecution to succeed against 2nd accused, it would have to be proved that at the time he turned up at the premises that he was there to collect or otherwise deal in the drugs, the subject of Count 1 on the indictment.  One of the critical issues in respect of both accused, his knowledge of what was in the package.

63.  In relation to the issues in relation to the Count 1, the case against both accused is circumstantial.  Neither accused is made admissions about knowledge in relation to the drugs in this account.

64.  In relation to the Count 2, the case against 2nd accused could readily be viewed as quite strong. Given where the drugs were found, a strong inference is available that 2nd accused secreted the drugs in his underpants.  In the circumstances of the case, it would clearly be open to the jury to infer that he knew perfectly well what it was he secreted in his underpants.

The contention on behalf of 2nd accused

65.  Both the prosecution and 2nd accused accept that it was proper that Counts 1 and 2 should be joined in this indictment.  The legal framework for the acceptance of this position is to be seen in Rule 7 of the Indictment Rules set out full below.  In essence, the contention of 2nd accused is that, notwithstanding this proposition, the joinder of the 2 counts on the same indictment prejudices 2nd accused, because the jury if they were to know about the facts of the Count 2, they could readily infer that he knew about the drugs and the nature of those drugs which are the subject of the Count 2.  The argument on behalf of 2nd accused is that if they came to the conclusion that he knew about “ice”, he would be more likely to commit the offence of trafficking in “ice”.  On behalf of 2nd accused, it is argued that the jury might be tempted to undertake what is forbidden reasoning that because 2nd accused was a possessor of “ice”, he would be more likely to traffic in that substance.

66.  On behalf of 2nd accused, if he faced both counts at trial it is also argued that 2nd accused that he would lose his “shield”. Presumably the essence of this contention is that pursuant to section 54(1)(e) of the Criminal Procedure Ordinance, Cap. 221, the prosecution would be entitled, if 2nd accused testified, to cross examine him about the drugs in his underpants.  The argument is that this would not be open to the prosecution, if the Count 2 was not on the indictment.

67.  Allied to this, the argument on behalf of 2nd accused is that the exposure of 2nd accused on a two-count indictment to cross examination about the possession count would have the practical effect of discouraging 2nd accused from testifying in relation to the first.

68.  Accordingly, it is submitted on behalf of 2nd accused that the combination of circumstances produces an element of unfairness against him.

69.  In this regard, the argument on behalf of 2nd accused is not that the charges were improperly joined but that the joinder produces unfairness and by reason thereof the discretion vested in the Court by section 23 of the Criminal Procedure Ordinance is invoked.

The contentions of the prosecution

70.  The case for the prosecution on this issue is that the 2 charges arise from the same set of facts and sequence of events.  Further, 2nd accused has entered pleas of not guilty to both charges and if the charges were severed that would necessitate two trials.  Further, the prosecution points out that both charges involve dangerous drugs and indeed the same dangerous drug in both cases.  The prosecution also points out that the witnesses involved in both counts are the same and 2 trials necessitate them being called twice.  In connection with this, it is contended that the credibility of the witnesses should be determined in one trial rather than two.

Principles informing the exercise of the discretion vested in the Court

Exercise of the discretion

71.  It is the position of both the prosecution and those representing 2nd accused that the case is not one of mis-joinder. In this regard, Rule 7 of the Indictment Rules provides:

“Subject to section 18 of the Ordinance, charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character.”

These rules are made under the Criminal Procedure Ordinance.  As I have already indicated, the position of both parties is that the offences form a series of offences of the same or similar character and that, accordingly, the offences were properly joined in the indictment. Section 18 of the Ordinance is not relevant for present purposes.

72.  Section 23(3) of the Criminal Procedure Ordinance reposes a discretion in the Court to sever an indictment. Section 23(3) provides as follows:

“Where, before trial or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.”

73.  Section 23(3) is clearly designed to cover a multitude of situations and is not limited to situation where there has been compliance with Rule 7.  That said, that situation likely to be the most commonly encountered situation.  On its face, the provision reposes in the Court a discretion to order a separate trial of any count or counts in the indictment if “the Court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with [one or] more than one offence in the same indictment.”

74.  The issue for determination is whether in the circumstances the accused is prejudiced or embarrassed in his defence by being tried on the 2 counts in the indictment. If that circumstance exists then there is a discretion to sever. The discretion is informed by the policy underlying Rule 7 of the Indictment Rules.  The policy behind this provision is to permit the whole of the facts of the case to be adjudicated on by one jury.  In Ludlow v Metropolitan Police Comr [1971] AC 29, the House of Lords considered the principles which govern the exercise of discretion to sever under the equivalent of section 23 of the Criminal Procedure Ordinance.[13]

75.  It is plain that in Ludlow, Lord Pearson took the view that the discretion order severance of otherwise properly joined charges are to be understood against the background of the width and effect of the rule which permits joinder.  In this regard, Lord Pearson considered the decision of the English Court of Appeal in R v Kray [1969] 3 WLR 831 and he cited with approval the following from that decision:[14]

“It is not desirable, in the view of this court, that [Rule 7] should be given an unduly restricted meaning, since any risk of injustice can be avoided by the exercise of the judge’s discretion to sever the indictment. All that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima facie case that they can properly and conveniently be tried together.”

76.  Implicit in that passage in Kray is the recognition that there may be cases where there will be prejudice to an accused by reason of the joinder of charges in an indictment meets the requirements of Rule 7.  That prejudice might be ameliorated by proper directions from the trial judge in summing up.  Lord Pearson made this point again in a slightly different context further in speech when he observed:

“In my opinion, this theory - that a joinder of counts relating to different transactions is in itself so prejudicial to the accused that such a joinder should never be made - cannot be held to have survived the passing of the Indictments Act, 1915. No doubt the juries of that time were much more literate and intelligent than the juries of the late eighteenth and early nineteenth centuries, and could be relied upon in any ordinary case not to infer that, because the accused is proved to have committed one of the offences charged against him, therefore he must have committed the others as well. I think the experience of judges in modern times is that the verdicts of juries show them to have been careful and conscientious in considering each count separately. Also in most cases it would be oppressive to the accused, as well as expensive and inconvenient for the prosecution, to have two or more trials when one would suffice. At any rate in my opinion, the manifest intention of the Act is that charges which either are founded on the same facts or relate to a series of offences of the same or a similar character properly can and normally should be joined in one indictment, and a joint trial of the charges will normally follow, although the judge has a discretionary power to direct separate trials under section 5 (3). If the theory were still correct, it would be the duty of the judge in the proper exercise of his discretion under section [23(3)] to direct separate trials in every case where the accused was charged with a series of offences of the same or a similar character, and the manifest intention appearing from section 4 and rule 3 would be defeated. The judge has no duty to direct separate trials under section [23(3)] unless in his opinion there is some special feature of the case which would make a joint trial of the several counts prejudicial or embarrassing to the accused and separate trials are required in the interests of justice. In some cases the offences charged may be too numerous and complicated [authority cited], or too difficult to disentangle [authority cited], so that a joint trial of all the counts is likely to cause confusion and the defence may be embarrassed or prejudiced. In other cases objection may be taken to the inclusion of a count on the ground that it is of a scandalous nature and likely to arouse in the minds of the jury hostile feelings against the accused: [authority cited].”

The observation by Lord Pearson in the foregoing passage about the common sense and quality of juries who try cases in England and Wales in the 1970s applies with even greater force to juries who try cases in Hong Kong.

77.  Lord Pearson also made the point, citing R v Sims [1946] KB 531, 536 that the fact that evidence may be admissible in one count and inadmissible in another which was otherwise properly joined under Rule 7 would not necessarily attract an exercise of a discretion to sever the charges.

78.  It was against this background that Lord Pearson said in the passage cited immediately above that require some “special feature” to justify the exercise of the judicial discretion to sever.

79.  It appears that Ludlow and Kray have been consistently followed in Hong Kong: R v Lee Shun Chung & Ors CACC 359/1986; R v Wong Lap Kwong [1991] 1 HKLR 52, [1991] HKCU 324; R v Mark Ayivor CACC 359/1991; R v Lo Wai Keung [1993] 2 HKDCLR 47, (1992) 2 HKPLR 478; Yeung Chun Pong & Ors v Secretary for Justice [2008] 3 HKLRD 1, [2008] 2 HKC 46, (2008) 13 HKPLR 61, §47; HKSAR v Fung Hin Wah Edward [2012] 1 HKLRD 360, §39; HKSAR v Hui Rafael Junior & Ors [2015] HKEC 21, §9; HKSAR v NSH [2017] 3 HKLRD 214, [2017] 4 HKC 269; HKSAR v Musah Hakeem Tahiru [2018] HKCFI 1360, [2018] 3 HKLRD 1.

80.  In Musah Hakeem Tahiru (above), Zervos J (as Zervos JA then was) referred to Ludlow and said: “It is only where there is a special feature in the case which would make a single trial prejudicial or embarrassing to the accused or for any other reason that the court would exercise its discretion to order separate trials.”[15] Zervos J then explained what he meant by “special feature” as he observed:[16]

“Ultimately the question as to whether to exercise the power will depend on how the interests of justice are best served, taking all the circumstances and interests into account but bearing in mind the accused’s right to a fair trial. So when we talk about whether there is a special feature in the case that would make a single trial prejudicial or embarrassing to the accused or for any other reason we are in fact saying is there a good reason to order a separate trial because of the real risk that the trial will result in unfairness to the accused or offend the interests of justice.”

81.  It seems to me that the observations in Musah Hakeem Tahiru (above) as to the true scope of the discretion vested in the Court by section 23 of the Ordinance makes clear that Lord Pearson in Ludlow in referring to a “special feature” was not to be understood as adding an extra or super added requirement as a precondition to the exercise of the section 23 discretion.  Given the policy which underlies section 23 and Rule 7 and given the other available tools that the trial judge has to ameliorate any prejudice which might arise, it would be, of necessity, an unusual case which mandates the exercise of that discretion.  In short, what has to be considered in the interests of justice and, in particular, whether the accused is likely to get a fair trial.

82.  In Hui Rafael Junior & Ors (above) §11, Macrae JA (as Macrae VP then was) followed Ludlow (above) and endorsed a passage from R v Christou [1997] AC 117, 129 D-F as to the factors which arise in this context as follows:

“They will vary from case to case, but the essential criterion is the achievement of a fair resolution of the issues. That requires fairness to the accused but also to the prosecution of those involved in it. Some, but by no means an exhaustive list, of the factors which may need to be considered are: - how discrete or inter-related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family, on the victims and their families, on press publicity; and importantly, whether directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together. In regard to that last factor, jury trials are conducted on the basis that the judge’s directions of law are to be applied faithfully.”

Elements of the offences

83.  Both trafficking in a dangerous drug contrary to section 4 of the Dangerous Drugs Ordinance, Cap. 134 and possession of a dangerous drug contrary to section 8 of that Ordinance have at least one common element.  The accused on a charge of trafficking must be proved to have known that he was trafficking in a dangerous drug: HKSAR v Mohammed Saleem [2009] 1 HKLRD 369, §36-38.  It is not necessary to prove that the accused knew the specific nature or class of drug in which he was trafficking: R v Tam Chun Fai [1994] 2 HKC 397, 401-402.[17]

84.  The same considerations operate in section 8.

Application of the principles to the present case

85.  There are, in effect, to contentions in the first basis upon which counsel for 2nd accused contends that the charges should be severed.  Essentially what counsel is arguing is that the jury might conceivably reason that because accused must have known about the ice in his underpants that he therefore must have known about the ice in the package the subject of Count 1.  The issues are, in my opinion, substantially different because the mode of possession or attempted possession is fundamentally different. Further, the real issue in relation to Count 1 is whether reason that 2nd accused came to the relevant premises was that he intended to pick up a central quantity of dangerous drugs.  In my judgement, the simplest of directions in the summing up (assuming a case to answer) or separate consideration would make the case.  The 2^nd argument within the first contention of counsel for the accused is the insidious implication that the jury might think because of the drugs in the underpants that 2nd accused is to use colloquial (but possibly outmoded) parlance, a “druggie” and therefore because he is a “druggie” would be more likely to be involved in trafficking in dangerous drugs. Leaving aside the obvious difference in quantities, it seems to me that this can be also readily cured by direction.

86.  The second and third contentions of counsel for 2nd accused are closely aligned and can be considered together.  The contentions are that 2nd accused might, he chooses to testify lose his “shield” because if he faced only the trafficking count could not be cross-examined about the possession count.  This is allied with the contention on behalf of 2nd accused that the accused might be inhibited from giving evidence if he faces 2 counts whereas if he simply faced the trafficking count he might be less inhibited to give evidence. Section 54(e) permits cross-examination of an accused and an obligation to answer questions about that with which he is charged.  The right to self-incrimination applies to anything other than that with which he is charged.  This contention does not take into account that the cross-examination of the accused (whether by the prosecution or 1st accused) is limited only to questions which are relevant. Even if 1st accused ran a somewhat modified “cut-throat” defence (it was not me, but if it was anyone it was him) the bounds of relevance to questions are clearly circumscribed.  In any event, if questions were run along the “druggie” line that could be appropriately cured by direction.  In any event, a determination as to whether to sever upon the basis that the accused might be inhibited to give evidence is, at this stage of the trial speculative in the extreme.  In any criminal trial, a multitude of tactical and other considerations form the advice as to whether or not to testify and the decision based on that advice.  There is certainly nothing at this stage of the trial which would justify the exercise of the discretion at this stage.  I am far from encouraging a further application later in the trial, but I do make the point that section 23 of the Ordinance does speak of “at any time of the trial”.

87.  Further in relation to these 2 contentions, this matter was considered in R v Phillips (1988) 86 Cr App R 18 the same argument was levelled before the English Court of Appeal. Woolf LJ for the Court observed:[18]

“In exercising his discretion the judge can take into account the practical consequences of ordering separate trials including the expense and inconvenience to witnesses that will result as well as the circumstances of the defendant. While the right of a defendant not to give evidence must be recognised and weight can be given to the desires of the defendant, it has to be borne in mind that whether or not the indictment is severed the defendant can change his mind about his wishes as to giving evidence and because of this there would be a risk that in some cases applications would only be made for tactical reasons.

Certainly in the circumstances of this case, the Court would not dissent in any way from the decision of the learned judge that he was not required to sever the counts of this indictment. The two counts were closely inter-related and it was obviously desirable that they would both be dealt with together at the one trial.”

88.  I take the decision of the English Court of Appeal in Phillips (above) not as binding or persuasive authority that the possibility of being inhibited from giving evidence can never be a consideration, but the observations of Woolf LJ as to the fact is that a trial judge might consider are as pertinent in that case as they are in the present.  In my judgement, a proper balance between the factors which would mandate accused facing both counts on the indictment and the possible disinhibition of the accused from giving evidence comes down, at least at the moment of giving this decision strongly and powerfully in favour of refusing such an application.

89.  The fact that it is not necessary for the prosecution to prove that the accused knew the specific nature of the drug, the subject of the 2 charges that he faces is a minor and probably largely theoretical factor which militates against exercising the discretion.  Given the high probability that a jury would have not the slightest difficulty in concluding that the accused knew he was in possession of a dangerous drug and, for all practical purposes, that this drug was ice, the practical reality of the points made on behalf of 2nd accused still exists.  The more pertinent point is that it is not a very forceful point and for the reasons I have already expressed not one which would cause this Court to exercise the discretion to sever.

90.  I have also considered the grounds advanced on behalf of 2nd accused cumulatively as well as the individual consideration outlined in the preceding paragraphs.  The conclusion is that in the light of the policy underlying Rule 7 and section 23 the balance, at least at this stage, comes down firmly in favour of the accused facing both counts on the indictment.  I decline to sever the indictment.